Citation Nr: 1542095
Decision Date: 09/29/15 Archive Date: 10/05/15
DOCKET NO. 10-49 326 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia
THE ISSUE
Entitlement to waiver of recovery of an overpayment in the amount $7,066.43, to include the issue of the validity of the overpayment.
REPRESENTATION
Appellant represented by: Georgia Department of Veterans Services
WITNESSES AT HEARING ON APPEAL
Appellant and Spouse
ATTORNEY FOR THE BOARD
Michael J. Skaltsounis, Senior Counsel
INTRODUCTION
The Veteran had active service from September 1978 to December 1993, May 2003 to May 2004, and October 2004 to July 2008.
This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 determination by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, which found that an overpayment had been created over the course of the Veteran's active service from May 2003 to May 2004, and from October 2004 to February 2006, during which time the Veteran was found to be in receipt of both VA monthly compensation benefits and active duty pay. Jurisdiction of that issue is now with the Atlanta, Georgia RO.
REMAND
The Board finds that the remand of the issue on appeal is required for two primary reasons. First, after considering the Veteran's contention that he did not recall receiving "double" payments during the period in question, although there are certain computer generated itemizations that permit the Board to generally appreciate how the RO may have arrived at the amount of overpayment in this case, the Board is unable to arrive at the precise figure of $7,066.43, and in any event, the Board finds that the Veteran is entitled to be placed on clearer notice of how the amount was calculated and any additional evidence that supports the fact that those VA payments were in fact disbursed to the Veteran. Consequently, the Board finds that the Veteran should be provided with an paid-due accounting of how the overpayment was calculated and that an effort should be made to obtain any additional records and documents that support the conclusion that the Veteran received both VA compensation and active duty pay during active service from May 2003 to May 2004, and from October 2004 to February 2006.
Secondly, the Board notes that in the original notice of disagreement and hearing testimony, the Veteran has emphasized the stress the withholding of compensation payments to recover the overpayment has caused the Veteran and his family, and that while the RO has addressed the basis for the Veteran's indebtedness, it has not fully considered the issue of waiver. Therefore, prior to its readjudication of this issue on appeal, the RO should give the Veteran an additional opportunity to describe the hardship the withholding of those funds has caused the Veteran and his family, and then make sure it fully addresses the issue of waiver at the time it readjudicates the claim.
Accordingly, the case is REMANDED for the following action:
1. Provide the Veteran with an paid-due audit accounting of how the subject overpayment was calculated over the periods of May 2003 to May 2004 and October 2004 to February 2006, and make an effort to obtain any additional records and documents that support the conclusion that the Veteran received both VA and active duty pay during those periods. If there is no other documentation or records available, that should be stated in a memorandum and that memorandum should be associated with the record. The Veteran should also be given an opportunity to provide evidence or argument in support of the proposition that he did not receive "double payments" during those time periods, and additional evidence or argument supporting the contention that the withholding of the subject overpayment caused and continues to cause his family undue hardship, such as by supplying financial information.
2. Then, readjudicate the claim on appeal, to include readjudication of the issue of the validity of the debt and the issue of entitlement to waiver of recovery of the overpayment. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015).